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[2009] ZAGPJHC 108
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Matsipe v Road Accident Fund (04/29811) [2009] ZAGPJHC 108 (20 August 2009)
SOUTH GAUTENG HIGH COURT, JOHANNESBURG
Case No: 04/29811
Date:20/08/2009
In the matter between:
THUSO MATHEWS
MATSIPE
..............................................................................
Plaintiff
and
ROAD ACCIDENT
FUND
..................................................................................
Defendant
MEYER, J
[1] On 10 August 2002, the plaintiff, who was a pedestrian at the
time, was knocked down by a motor vehicle in Von Wielligh Street,
Johannesburg. In this action the plaintiff claims payment of
compensation for the damages suffered by him as a result of the
bodily injuries sustained by him as a consequence of the accident.
[2] The issue of liability has been resolved between the parties.
The plaintiff will be entitled to 70 percent of any proven damages
suffered by him.
[3] It is common cause that the plaintiff
sustained abrasions to the forehead and right maxilla, a whiplash
injury to his cervical
spine, lacerations of the right elbow,
abrasions of the left elbow, abrasions of the right wrist, and a
fracture of the 5
th
metacarpal of the left hand. It is in issue whether the plaintiff
sustained a head injury with resultant epilepsy.
[4] The parties reached agreement in respect of
most matters relating to the quantum of damages. It was agreed that
the defendant
will pay to the plaintiff the amount of R385, 000.00 if
it were to be found that the plaintiff sustained a head injury with
resultant
epilepsy, and the amount of R130, 000.00 if such finding is
not made. The agreed amounts represent the equivalent of 70% for of
the plaintiff’s past and future loss of earnings or reduced
earning capacity and for his general damages. It was also agreed,
in
either event, that an undertaking in terms of
section 17(4)(a)
of the
Road Accident Fund Act 56 of 1996
will be provided by the defendant
in respect of the plaintiff’s future medical expenses, limited
to 70 percent in respect
of the plaintiff’s injuries.
[5] The plaintiff
called
Prof Rasik Gopal, a specialist neurosurgeon, as an expert witness on
the issue between the parties. He has been at the
Chris Hani
Baragwanath Hospital for the past 36 years, and is presently also the
Head of Neurosurgery at the University of the
Witwatersrand. The
plaintiff’s mother, Mrs. Matsipe, also testified on his behalf.
The defendant closed its case without
calling any witnesses.
[6] Mrs. Matsipe arrived at the scene of the accident shortly after
the accident had happened. She testified that she had found
him
lying down and that he had ‘fainted’. He showed no signs
of response.
It is undisputed that the plaintiff
was transferred by ambulance from the scene of the accident to the
Johannesburg Hospital where
he was admitted for a period of about
four days. Mrs. Matsipe testified that she accompanied the plaintiff
in the ambulance to
the hospital. He only regained consciousness
when they were about to enter the hospital. Mrs Matsipe testified
that the plaintiff
enjoyed good health before the accident and that
he never suffered from epilepsy before the accident in issue. It is
common cause
that the plaintiff presently suffers from epilepsy.
[7
] Prof Gopal expressed
the view that the plaintiff’s head injury was a moderate one.
His opinion in this regard was
inter
alia
based firstly on the nature of the
pedestrian accident in which the plaintiff was involved, which he
explained causes a typical
acceleration – deceleration type of
brain injury that is diffuse affecting most parts of the brain;
secondly the nature
of the other head injuries that were sustained by
the plaintiff (the abrasions of the forehead and right maxilla),
which indicates
that the plaintiff’s head must have hit a hard
surface; thirdly the plaintiff’s loss of consciousness, which
he inferred
from the plaintiff’s history that had been conveyed
to him; and fourthly the post accident symptoms with which the
plaintiff
presented three years after the accident when he was seen
by Prof Gopal.
[8] Prof. Gopal referred to other possible causes
for epilepsy, but, in his view, the brain injury sustained by the
plaintiff as
a result of the accident was the probable one since
epilepsy was consistent with such trauma and the plaintiff had only
presented
with epilepsy symptoms after the accident.
[9]
An evaluation of the evidence and the
opinion advanced by Prof Gopal on the issue between the parties leads
me to conclude that
his opinion is founded on logical reasoning [see:
Michael and Another v Linksfield Park Clinic (Pty) Ltd and Another
2001 (3) SA 1188
(SCA), at pp 1200 – 1201 paras [34] –
[40]], and should be accepted. It was not gainsaid and is supported
by
the facts and probabilities
.
[10
] I am accordingly of
the view that the plaintiff has proved on a balance of probabilities
that he sustained a head injury as a
result of the accident and that
the
sequelae
thereof
includes epilepsy which he is presently suffering.
[1
1] In the result the
following order is made:
The defendant is ordered to pay to the plaintiff
the amount of R385, 000.00 within fourteen days from the date of
this order,
failing which interest will start accruing on the
aforesaid sum at the rate of 15,5 percent per annum until date of
final payment.
The defendant is ordered to provide an
undertaking in respect of the plaintiff’s future medical
expenses as envisaged in
section 17(4)(a)
of the
Road Accident Fund
Act 56 of 1996
, arising out of the injuries sustained by him in the
motor vehicle accident which occurred on 10 August 2002, after such
costs
have been incurred and upon proof thereof, limited to 70
percent.
The defendant shall pay the plaintiff’s
taxed or agreed party and party costs of the action, which costs
shall include the
qualifying fees of Prof Rasik Gopal (specialist
neurolosurgeon), Dr Ebrahim Ismael (orthopaedic surgeon), Ms Jeannie
van Zyl
(industrial psychologist), and Mr G.A. Whittaker (Algorithm
Consultants & Actuaries).
P.A. MEYER
JUDGE OF THE HIGH COURT
20 August
2009